Petition for Rehearing of Maynard GPS Case Denied

The petition for rehearing the GPS issues from the DC Maynard case was denied this past November.

It was a close decision with 4 of the 9 judges dissenting. Two dissenting opinions were issued. The first, drafted by Chief Judge Sentelle and also signed by Judges Henderson, Brown, and Kavanaugh, argued that Maynard was not distinguishable from the Knotts case, and therefore there was no reason to have decided Maynard differently than Knotts. The opinion also took issue with the theory that aggregation of information could amount to violation of the Fourth Amendment, which the original decision appeared to promote. It expressed concern that this line of reasoning would mean that other forms of surveillance—including personally conducted visual surveillance—could be held to violate the Fourth Amendment when done on a prolonged basis. Citing an opinion from the Seventh Circuit, it also suggested that GPS tracking should perhaps not even be considered a search within the meaning of the Fourth Amendment.

The second dissenting opinion, drafted by Judge Kavanaugh, pointed out that the appellant had also asserted a Fourth Amendment violation on the basis of the interference with personal property through the installation of the GPS tracking device on the appellant’s automobile. Thus, Judge Kavanaugh opined that a rehearing was additionally warranted in order to adjudicate this question.

The order, a concurring opinion, and the two dissenting opinions are available here thanks to courtlistener.com.

US Government seeks rehearing of Maynard decision

The US Attorney’s Office has submitted to the DC Circuit Court a petition for rehearing of the GPS issue from the recent Maynard decision. I discussed that case in a previous post. In the petition, the government argues that the court’s holding on GPS surveillance is inconsistent with both existing US Supreme Court and DC Circuit jurisprudence, “raises enormous practical problems for law enforcement” and “implicitly calls into question common and important practices such as sustained visual surveillance and photographic surveillance of public places.” A copy of the petition is available here courtesy of Wired’s Threat Level blog (See also this post there on the FBI's GPS surveillance of an Arab-American for unknown reasons).

Schneier on Web Surveillance

Security specialist Bruce Schneier has published an opinion piece on CNN. The article comes in response to reports that the Obama administration is seeking to secure law enforcement access to web-based communications data through the enactment of new legislation. See also this related post on the LegaLIFT blog.

News: Republican Dissidents using Spy Cameras on MI5 Base

From the Belfast Telegraph: There are reports today that Oglaigh na hEireann, the splinter dissident republican outfit, had established a sophisticated operation of four digital spy cameras in a forest overlooking the MI5 base at Palace Baracks in Northern Ireland. The cameras, which are likely to have been there for months, are reported to have been battery powered, equipped with memory sticks and to have successfully covered all angles of the base.

With recent increases in personnel, the barracks are the largest MI5 base outside London, employing more than 300 people.

It is feared ONH, which bombed Palace Barracks in April, has used the recordings to target soldiers and build profiles on spooks working at the new spy base.

Senior security sources in London tried to play down the cameras being found, saying only that trees were cleared and a new fence erected because of concerns the wooded area could conceal gunmen.

DC Circuit Rules on Fourth Amendment and GPS

In an earlier post, I discussed the case of People v. Weaver which was argued before the New York Court of Appeals. Now, the Federal Circuit Court for the District of Columbia has decided on the issue of whether the long-term use of GPS surveillance must be supported by a warrant. Unlike in People v. Weaver, the DC Circuit decided the case on the basis of the Fourth Amendment of the US Constitution as opposed to an analogous guarantee under a State Constitution. The case, United States v. Maynard, No. 08-3030 (D.C. Cir. August 6, 2010), does have some similarities to People v. Weaver, but there are also some interesting and significant differences.

Maynard involved the use of a GPS device to monitor the movements of a suspect’s vehicle over the course of 28 days. Inevitably, as in Weaver, much of the discussion in Maynard centers around the Knotts case (460 U.S. 276 (1983)). Knotts was the Supreme Court case involving the “beeper” homing device and the drum of chloroform (See my earlier post for more details). In Maynard, however, the court seized upon specific language indicating a limitation on the scope of the Knotts holding. In this way, the DC court argued that the Knotts court had drawn a distinction between the limited type of surveillance at issue in that case versus “more comprehensive or sustained” surveillance as was at issue in the Maynard case (“Most important for the present case, the Court specifically reserved the question whether a warrant would be required in a case involving ‘twenty-four hour surveillance,’….” (p. 17)).

Thus, for the Maynard court, the issue in question in the case was whether prolonged GPS-tracking of a vehicle without a warrant violated the Fourth Amendment protection against unreasonable searches. As in Weaver, the DC court was particularly impressed by the amount of information that could be extracted from having the complete record of an individual’s movements over an extended period of time.

Since the case concerned the Fourth Amendment, the Court had to apply the so-called Katz test (after Katz v. United States, 389 U. S. 347 (1967)) to determine whether there was a violation. That involves application of the famous (or infamous) “reasonable expectation of privacy” standard. Under that standard, US Supreme Court jurisprudence has established that one cannot reasonably expect that aspects of life that are exposed to the public remain in or belong to the private sphere. Thus, the reasoning in Knotts was that the use of the homing device did not implicate the Fourth Amendment since “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another” (Knotts, at 281). Interestingly, the DC court held that the prolonged surveillance of a suspect’s vehicle with GPS does not concern movements that are “exposed to the public” in the same way as the journey of the drum of chloroform from its place of purchase to Knotts’ cabin. Here, the extent of information gathered was the distinguishing factor. Although each of the vehicle’s movements on public roads was undoubtedly in public view, the DC court maintained that the likelihood that anyone would track each of those movements week after week was “essentially nil” (p. 26). Thus, in essence, it may be unreasonable to expect that no one will observe the totality of a single trip made with one’s automobile on public roads, but it is not unreasonable to expect that no one person will observe the totality of every trip made with that automobile over the course of a month. That, at least, appears to be the court’s reasoning.

This line of thought makes this case particularly remarkable. The notion that the extent of information itself that is gathered about a criminal subject could hold significance for Fourth Amendment analysis has not been adopted by the Supreme Court; yet, many have questioned or criticized the shortcomings of the reasonable expectation of privacy standard, including the potential lack of differentiation with respect to the aggregation of “publicly exposed” information as opposed to individual bits. I’m not sure that any other federal court has introduced this notion – there at least don’t appear to be any other such cases concerning the use of GPS. In fact, the 7th and 9th Circuits tended to suggest the sort of result one would expect—i.e. that use of GPS generally wouldn’t constitute a Fourth Amendment search since it merely conveyed information that was exposed to public view (See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010)). If the Supreme Court were to adopt Maynard’s line of reasoning, it would mean a significant change for the scope of Fourth Amendment protection, not to mention the future of law enforcement surveillance.

But how does Maynard differ from Weaver—apart from the fact that they dealt with different bodies of law? Weaver seemed to focus on the technology itself and the novel dangers it posed—as bemoaned by Judge Smith in his dissent. As a result, Weaver appears to hold that the use of GPS for surveillance will always require a warrant whatever the circumstances. The holding in Maynard is narrower. It doesn’t subject GPS in and of itself to the warrant requirement but rather only the “prolonged” use of it. Again, it’s essentially the body of information that is acquired that is the key issue. “Prolonged” use results in the collection of too much information—beyond what one would reasonably expect to be public. That means that more limited use of GPS without a warrant should be OK within DC (assuming there aren’t other bases for objecting on Fourth Amendment grounds—for instance on the basis that depositing the GPS device on the car constituted an impermissible seizure). Where exactly the line would lie between overintrusive surveillance and permissible surveillance remains to be seen. It’s significant to note that the court expressly reserved any determination as to whether prolonged visual surveillance would be subject to the warrant requirement. That fact might, in a way, leave some room for technology to have some significance after all. However, if it were ruled that no warrant was required for police officers to maintain visual surveillance of a suspect over the course of a month and record that suspect’s movements—effectively accumulating the same body of information that was at issue in Maynard—this would be a strange result.

Maynard is interesting for another reason. On pages 36 - 37, it refers to what in German is known as a right to “informational self-determination” (informationelle Selbstbestimmung). In English scholarship, this right is often referred to as “informational privacy” (See DETECTER Deliverable D17.1: van der Hilst, "Human Rights Risks of Selected Detection Technologies: Sample Uses by Governments of Selected Detection Technologies," p. 4 (citing Alan F. Westin, Privacy and Freedom (1967) and Arthur Miller, The Assault on Privacy (1971))). If a right to control information about oneself wins greater recognition in the US—beyond law pertaining to the Freedom of Information Act and (potentially) common law torts—this would also represent a significant development for privacy law in the US.

News: Washington Post launches New Series on "Top Secret America"

For those who haven't already read about it on the LIFT, the Washington Post began a new series of reports and features this week highlighting the ballooning national security and intelligence apparatus in the US since Sept. 11. The main page of the project is accessible here.

One figure that stuck out for me was the claim that "[a]n estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances." (Found in this article)

Also have a look at the gallery of anti-deception technology.

EU Parliament Gives Green Light to EU-US SWIFT Agreement

The Neue Zürcher Zeitung has announced that the EU-Parliament has approved the new US-EU SWIFT agreement that would involve communication of European bank transfer data. According to the NZZ story, 484 parliamentarians voted in favor of allowing the treaty, 109 voted against. The agreement will have a term of 5 years by which time, the EU hopes to have developed its own monitoring system.

News: New US/EU Agreement on Transfer of SWIFT Banking Data

From European Voice: A new agreement to grant US Counter-Terrorism authorities access to European banking transaction data held in the SWIFT database:

Final agreement on the new wording was reached on Friday (25 January). After the draft agreement had been initialled by Malmström on 10 June, MEPs had demanded
changes to the text concerning the bulk transfer of data, the creation of an EU counterpart to the US Terrorist Finance Tracking Programme (TFTP), and EU oversight of TFTP data-processing on US soil.
The three largest political groups in the Parliament – the centre-right EPP, centre-left PES and liberal ALDE – are now in favour of the agreement. In February, the Parliament, using new powers under the EU's Treaty of Lisbon, had rejected an interim agreement on SWIFT transfers.

Over at the Legalift Mathias Vermeulen has a discussion of some of the new restrictions build in to the new agreement, such as a ban on the use of this information for data mining, the possibility of administrative redress for EU citizens and the involvement of Europol in verifying and approving US requests for data.

In its coverage the Register points out that the European Data Protection Supervisor continues to question the need for mass transaction and long term storage of this data, and has additionally called for more oversight.

DETECTER: The Human Rights Risks of Selected Detection Technologies

DETECTER Deliverable 17.1 was written by Rozemarijn van der Hilst as part of Work Package 9. You can read the whole thing here:

Executive Summary

1. Intelligence is a vital element in successful counter-terrorism. There is rapid development in detection technologies that aid in the gathering of information. However, there are concerns over the privacy intrusion these detection technologies cause.
2. Privacy is important for individual well-being, as well as the proper functioning of a democratic society. The right to privacy is vested in different national, European and International laws, which prescribe that the right to privacy may only be limited by measures that have a sound legal basis and are necessary in a democratic society for the protection of national security.
3. From the legal and moral framework around privacy it emerges that detection technologies used in counter-terrorism should take account of: legitimacy, proportionality, necessity, transparency, factors concerning the person targeted, the sensitivity of the data sought, the effectiveness, the possibility of function creep and the extent to which PET’s are implemented.
4. Privacy concerns arise with the widespread and indiscriminate use of communication surveillance; the covert use of CCTV technology; the sensitivity of biometric data; and the ineffectiveness (and therefore disproportionateness) of data mining and analysis and decision support technologies.
5. There are also risks inherent to the use of detection technologies in general. The use of detection technologies can have a ‘chilling effect’ and can be ineffective due to the huge amount of gathered data. However, positive effects of the use of detection technologies are the ability to detect and therefore prevent terrorist attacks and the deterrent effect they have.
6. Detection technologies should be used, provided that their authorization is based on legislation that protects against abuse and presents fair consideration to the proportionality and necessity of the aim pursued. The ultimate assessment of the threat detection technologies pose to privacy depends on the actual usage of the technologies.

DETECTER: The Moral Risks of Preventive Policing in Counter-terrorism

I'm going to start listing details of publications of the DETECTER project here on the blog. D05.1 has been written by Tom Sorell as part of Work Package 3. You can read the whole thing here.

Executive Summary

1. Preventive policing is any action carried out by police with the intention of identifying and preventing a specific crime or a type of crime. Preventive policing can include “special investigation techniques”, including secret surveillance. These carry obvious moral risks.

2. Recommendaton Rec (2005) 10 of the Committee of Ministers of the Council of Europe outlines possible restrictions on the use of special investigation techniques. It suggests that the least intrusive special investigation measures should be used, if at all, only when the prevention or prosecution of serious crime requires it, and not in a way that conflicts with the right of anyone arrested to a fair trial. The principles reflect legal privacy protections under European Convention on Human Rights, Article 8, and Convention 108.

3. Liberal theory supports the approach of Rec (2005) 10. It permits the use of special investigative techniques in preventive policing if the crime that these techniques are intended to prevent is very serious, e.g. a terrorist attack. In particular, liberal theory permits the use of secret surveillance, if the choice of targets for the surveillance is evidence-based.

4. The form of liberal theory that best reconciles the demands of privacy and counterterrorism with those of liberty is a modified Kantian theory, which is less utopian in its assumptions about human beings than a Lockean theory, but which excludes the total concentration of power, as in a Hobbesian theory.

5. Liberal theory condemns terrorist acts not just because of the injury and death they cause, but because of the contempt for impartiality that terrorist groups display. Impartiality is central to the liberal design of government institutions.

6. Privacy in Kantian theory is primarily the scope agents have for deliberating and choosing life plans free from other people’s interference. In liberal theory generally, privacy is also the scope people have for forming intimate relationships without scrutiny and adopting harmless life plans (harmless means of pursuing happiness) without being subject to outside criticism.

7. Kantian theory does not justify restrictions on thought or expression of thought about terrorism or in favour of terrorism, but it does justify restrictions on actions that contribute to terrorist acts.

8. Expression of thought about terrorism, even expression of thought sympathetic to
terrorism, should not be criminalized from the point of view of liberal theory. This counts against e.g. the “glorification” of terrorism provisions in the UK Terrorism Act (2006).

9. Kantian theory implies that preventive policing can fairly employ “profiling” techniques for identifying suspects in counter-terrorism, so long as these are evidence-based.

10. “Profiling techniques” cannot justifiably be used alongside detention and trial procedures that are revised ad hoc for counter-terrorism purposes.

Comment: John Rentoul Attacks Chakrabarti's 'Shameless' Endorsement of Surveillance

Regular Independent columnist John Rentoul blogs about Liberty director Shami Chakrabarti’s appearance on last night’s Newsnight programme. He writes under the headline ‘Shameless: I Want a Surveillance Society’ - he likes to call her ‘Shameless Chakrabarti’ you see, which I presume is an attempt to imply she’s a hypocrite: ‘Oh so now you’re in favour of surveillance’ this line goes – ‘I thought you civil liberties people were against it’. This is already puzzling, as Liberty have consistently defended the principle that the security services ought to be able to use targeted surveillance against people about whom there is specific evidence to imply involvement in serious crime, though they campaign vigorously against arbitrary and unjustified use of surveillance. Rentoul’s attack focuses on her continued criticism of control orders:

What would she do instead of control orders, she was asked by Alex Carlile, the Liberal Democrat peer and independent reviewer of anti-terrorist law. After trying to hide behind trying them in court - what if there is not enough evidence for a conviction yet enough to warrant concern? - and the use of intercept evidence - not relevant in this case - she was eventually embarrassed into mumbling an answer: "Put them under surveillance."

Presumably she wants more CCTV, especially around the homes of terrorist suspects, and monitoring of their telephones and internet use.

Surveillance would either be prohibitively expensive, or intensely intrusive (thereby reinventing control orders in another form), or ineffective. Several suspects subject to control orders have already legged it to who knows where; any weakening of the controls would make it easier for them to abscond.

Given how small the numbers of people are who have been put under control orders (about 12 as of February this year) I think his argument about cost is of marginal importance, even if his assessment of the relative expense is accurate.

It also seems highly disputable that even intrusive surveillance would ‘reinvent’ control orders in another form – control orders primarily involve restrictions on people’s freedom, by imposing restrictions on who suspects can and can’t associate with, or imposing curfews and various degrees of house arrest, rather than intrusions into their privacy (though certainly the practice of 'tagging' is invasive). Now you could maybe argue that the additional invasions of privacy would always be worse than the restrictions of freedom. That would be a interesting position to take, and might even be coherent (though I suspect most would find it unpersuasive). But Rentoul’s not coming out and saying that. Instead he seems to want to have it both ways: control orders aren’t effective enough as they are, anything weaker will let the bad guys get away, but using surveillance beyond what is in place now will be just as bad. He’s painting Liberty as an organisation that is indifferent to the needs of effective policing and intelligence gathering. On the contrary their criticism of the use of control orders specifically takes aim at the claims of efficacy - take their earlier response to Lord Carlile’s previous announcement that there was no alternative to the control order regime or for that matter Shami Chakrabarti's piece in today's Times:

These orders were dreamt up by officials in 2005 and allow terror suspects to be placed under house arrest for ever without any semblance of criminal charge or trial. Apart from being profoundly unfair and un-British (the term “control order” comes from apartheid South Africa), this scheme is profoundly unsafe. A number of its targets have disappeared, and one former “controlee” had a habit of turning up, complete with plastic tag, at large public meetings attended by members of the present and past Cabinets.

And, as I said, they've consistently defended the use of targetted surveillance when the evidence supports it:

We take no issue with the use of intrusive surveillance powers per se. While intrusive surveillance will always engage Article 8 of the Human Rights Act 1998 (HRA)1 (right to privacy) such intrusion can be justified if it falls within the legitimate purposes set out under Article 8 (e.g. if done to prevent crime and threats to national security) and if it can be shown to be necessary and proportionate in all the circumstances.

What's shameless about that?

News: European Parliament Says No to US Bank Access

From BBC News: By 378-196 with 31 abstentions, the European Parliament has voted down the agreement to continue allowing the United States' counter-terrorism authorities access to the SWIFT database of European banking transactions, citing concerns at the 'inadequate privacy safeguards'. The deal, agreed by EU governments, would have granted US access for another nine months and follows intensive lobbying on the part of the American government:

Last week the Greens' home affairs expert, Jan Philipp Albrecht MEP, said that in backing the new deal the European Commission and EU governments had "not respected the fundamental criticism about the lack of sufficient protections with regard to privacy and the rule of law".

The leader of the Socialist group, Martin Schulz MEP, said: "We want a new and better deal with proper safeguards for people's privacy."

U.S. Mobile Phone Provider Received Some 8 Million Requests for Geo-Locational Data

Chris Soghoian has an interesting blog post from December. While attending the ISS World conference (Intelligence Support Systems for Lawful Interception, Criminal Investigations and Intelligence Gathering), Chris heard some surprising things. Counsel for the US telecom company Sprint Nextel indicated in a presentation that, within the space of a year, the company had received some 8 million requests from law enforcement for geo-locational data associated with mobile phones on the company’s network. In the comments on the post, one person conjectures that those don’t represent requests on 8 million distinct individuals, and that supposition is corroborated by another Sprint representative. This makes sense since typically police will want to know a single suspect’s location at various times throughout the course of an investigation. They may even want to check location continuously at regular intervals, say, every 1-2 minutes, in order to essentially track the suspect’s every move. Given the price lists associated with obtaining this information from telecoms (see Chris' post), a question for economists is whether that kind of electronic tracking is more cost effective than simply assigning a police officer to tail the suspect. The answer may depend on the particular level of crime incidence within the police force’s jurisdiction. Where crime incidence is higher, it may be more “economical” to assign officers to walk the beat and be available for incident response as opposed to conducting surveillance. It’s also unclear whether the +/- 8 million requests include emergency calls, where the location of the caller is revealed in the event that he or she is unable to give locational details verbally. But another interesting revelation related to the 8 million or so requests concerns how those requests were made and processed: evidently, Sprint has set up a special network interface to allow police agencies to submit geo-locational queries via computer.

News: 'Climate Change Emails a Foreign Intelligence Hack'

The lead story on the Independent today: Former chief scientific advisor to the Blair government David King says that the climate change emails leak bears all the hallmarks of a foreign intelligence agency operation:

Quite simply, it's the sophistication of the operation. I know there's a possibility that they had a very good hacker working for these people, but it was an extraordinarily sophisticated operation. There are several bodies of people who could do this sort of work. These are national intelligence agencies and it seems to me that it was the work of such a group of people," he said.

More than 1,000 emails, and some 2,000 documents, were stolen from a university back-up server where remote access is difficult. This represents a small fraction of the total number of emails for the period from 1996 to 2009, suggesting they had been selected for the most incriminating phrases relating to possible scientific misconduct and breaches of the Freedom of Information Act. The leak of the emails in the weeks running up to the climate change conference in Copenhagen appeared to be carefully timed to destabilise the meeting.

He does not draw concrete conclusions about who might be responsible, but responding to the fact that the emails appeared on a Russian company's server he speculates:

"If it was a job done on behalf of a government, then I suppose there is the possibility that it could be the Russian intelligence agency," he said.

"If it was a maverick group then I suppose it could be the Americans, but I am hazarding a guess as much as anyone else. The only thing is, I've worked within government and I've seen this in operation," Sir David added. "It was a sophisticated and expensive operation. In terms of the expense, there is the American lobby system which is a very likely source of finance. Right now, the American lobbyists are a very likely source of finance for this, so the finger must point to them," he said.

News: Florence DETECTER Programme Announced

The second DETECTER Project Meeting will take place in Florence on Thursday the 18th of February 2010. The Programme will run as follows:

9.00 – 9.15 Introduction by Prof. Martin Scheinin, Professor of International Law at the European University Institute and United Nations Special Rapporteur on the protection of human rights while countering terrorism

9.15 – 11.00 Identification of terrorist suspects through detection technologies: risks and opportunities
Chair: Martin Scheinin (European University Institute, Italy)

• Ehud Givon (WECU-technologies, Israel) – Security through intent detection
• Jacques Verraes (Europan Commission, Belgium) – Data protection issues related to identification of terrorist suspects
• Ben Hayes (Statewatch, United Kingdom) – Respondent to presentations of Commission and WeCU technologies

11.00 – 11.30 Coffee break

11.30 – 13.30 Human rights aspects of the use of detection technologies

Chair: Daniel Moeckli (University of Zurich, Switzerland)

• Roos van der hilst (University of Oslo, Norway) – Human rights risks of selected detection technologies - sample uses by governments
• Emilio Mordini (HIDE, Italy) - Biometrics, Body, Identity
• R. Leenes (University of Tilburg, the Netherlands) – Location based surveillance – why planes, trains and automobiles are the new castles

13.30 – 15.00 Lunch

15.00-17.00 Martin Scheinin presenting WP4 Deliverable on "Developments in the Declarations of Exceptions, Claims of Inapplicability, or Unilateral Modifications in Respect of Internation Law for the Sake of Counter-Terrorism"

Limited Places - To register, please e-mail mathias.vermeulen@eui.eu

News: Aiport Security Technology

Forbes has posted an interesting article today discussing various proposals for improving airport security, including behavioral analysis systems, physiological sensors, and increased use of profiling. One system being tested in Israel even sounds like psychological warfare—flashing images onto airport screens, “such as symbols associated with a certain terrorist group or some other image only a would-be terrorist would recognize” and then assessing individuals’ reactions to those images. The article also cites Jim Harper of the Cato Institute for suggesting that security be placed in the hands of the airlines in order to introduce more variation in security procedures.

News: SWIFT Update

The Legalift reported last week that 4 Countries remain opposed to the draft agreement granting US access to SWIFT banking transfers records. Germany's justice minister says that Berlin is uncomfortable with the plan and France, Austria and Finland have also signalled discontent with the scheme.

The draft plan is significantly different from the resolution issued by the European Parliament on the issue. 'Terrorism' is left undefined, requirements for judicial oversight are nowhere to be seen and the restriction of access to the specific issue of 'terrorism financing' is loosened to "prevention, investigation, detection, or prosecution of terrorism or terrorist financing". Ralf Bendrath has a round up of all these issues and many more.

If a decision is not reached by November 30th, then, as the Lisbon Treaty kicks in on December the 1st, the European Parliament may have much more say in the process (and it is likely to take another 6 months). Germany and Austria are reported to be under pressure to drop their opposition.

News: IMP Still Budgetted for 2016 Release

After mention was left out of the Queen's Speech, there was a lot of speculation that, in response to political pressure, plans for the Interception Modernisation Programme to monitor all electronic communications had been abandoned.

The Register reveals that the £2Bn remains in the Home Office's financial plans, scheduled for completion in 2016.

Comment: UK Gov Plans Shelved

The shelving of plans for the Interception Modernisation Programme (IMP) has been reported in a number of different ways. According to the Independent this was effectively 'a cancellation of the Big Brother database' while the BBC reported that the UK surveillance plan was 'to go ahead'. In this confusion Slashdot resorted to the headline 'In the UK, Big Brother Recedes and Advances'.

I think the Register has this one right. The post makes three points:

1) Next years general election (probably to take place in May) makes this a bad time to bring forward legislation that might provoke negative headlines. (Henry Porter has a nice point about the timing as well: with all the recent column inches covering the 20th anniversary of the Berlin Wall coming down, proposing big increases in surveillance invites comparisons with the Stasi all too easily).

2) Internet Service Providers, whose cooperation is needed for the scheme, are currently resistent. Before proceeding, government has to convince them of its merits and feasibility.

3) The players who want this (GCHQ, SOCA, ACPO, the Security Service, the Child Exploitation and Online Protection Agency and the Met) are not going away anytime soon:

Note that GCHQ and friends will still be around after the next election, as will their demands for IMP.

Ever the political pragmatists, the Tories know this well, and the section of shadow justice minister Dominic Grieve's recent speech on reversing the rise of the surveillance state was notably soft on IMP.

He said a Conservative government would submit the proposals to the Information Commissioner's Office to assess their impact on privacy. The ICO has already said it believes the case for mass surveillance of the internet has not been made.

News: UK Local Authority use of RIPA to be Restricted

From the Times: The Home Secretary Alan Johnson has announced curbs to the surveillance powers of local authorities. Computer Weekly summarises the important proposals as follows:

• raise the rank of the authorising officer to at least director level;

• give elected councillors a role in overseeing how local authorities use covert investigatory techniques;

• require voters' communications with MPs on constituency business to be treated as confidential information, and therefore subject to authorisation by a higher rank of officer;

• treat covert surveillance of legal consultations as "intrusive" rather than "directed" surveillance, meaning it can be carried out only by very few public authorities.

• clarify the test of necessity and proportionality so that powers will not be used to investigate dog fouling or people putting bins out a day early;